IIB
114th CONGRESS
2d Session
H. R. 5620
IN THE SENATE OF THE UNITED STATES
September 15, 2016
Received; read twice and referred to the Committee on Veterans' Affairs
AN ACT
To amend title 38, United States Code, to provide for the removal or demotion of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes.
Short title; table of contents
Short title
This Act may be cited as the VA Accountability First and Appeals Modernization Act of 2016
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. References to title 38, United States Code.
Sec. 3. Removal or demotion of employees based on performance or misconduct.
Sec. 4. Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain crimes.
Sec. 5. Authority to recoup bonuses or awards paid to employees of Department of Veterans Affairs.
Sec. 6. Authority to recoup relocation expenses paid to or on behalf of employees of Department of Veterans Affairs.
Sec. 7. Senior executives: personnel actions based on performance or misconduct.
Sec. 8. Office of Accountability and Whistleblower Protection.
Sec. 9. Treatment of whistleblower complaints in Department of Veterans Affairs.
Sec. 10. Appeals reform.
Sec. 11. Limitation on awards and bonuses paid to senior executive employees of Department of Veterans Affairs.
Sec. 12. Clarification of emergency hospital care furnished by the Secretary of Veterans Affairs to certain veterans.
Sec. 13. Sense of Congress regarding American veterans disabled for life.
Sec. 14. Establishment of positions of Directors of Veterans Integrated Service Networks in Office of Under Secretary for Health of Department of Veterans Affairs and modification of qualifications for Medical Directors.
Sec. 15. Continuing education requirement for employees of Department of Veterans Affairs authorized to prescribe medication.
Sec. 16. Review of whistleblower complaints.
Sec. 17. Identification of matters relating to part-time employment of members of the Armed Forces who are physicians.
Sec. 18. Recruitment of physicians in Department of Veterans Affairs.
Sec. 19. Authority to disclose certain medical records of veterans who receive non-Department of Veterans Affairs health care.
Sec. 20. Survey of veteran experiences with Department of Veterans Affairs medical care.
Sec. 21. Annual report on performance of regional offices of the Department of Veterans Affairs.
Sec. 22. Extension of authority of the Secretary of Veterans Affairs to provide for the conduct of medical disability examinations by contract physicians.
Sec. 23. Provision of status under law by honoring certain members of the reserve components as veterans.
Sec. 24. Provision of rehabilitative equipment and human-powered vehicles to certain disabled veterans.
Sec. 25. Appointment of licensed hearing aid specialists in Veterans Health Administration.
References to title 38, United States Code
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of title 38, United States Code.
Removal or demotion of employees based on performance or misconduct
In general
Chapter 7 is amended by adding at the end the following new section:
Employees: removal or demotion based on performance or misconduct
In general
The Secretary may remove or demote an individual who is an employee of the Department if the Secretary determines the performance or misconduct of the individual warrants such removal or demotion. If the Secretary so removes or demotes such an individual, the Secretary may—
remove the individual from the civil service (as defined in section 2101 of title 5); or
demote the individual by means of—
a reduction in grade for which the individual is qualified and that the Secretary determines is appropriate; or
a reduction in annual rate of pay that the Secretary determines is appropriate.
Pay of certain demoted individuals
Notwithstanding any other provision of law, any individual subject to a demotion under subsection (a)(2)(A) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade.
An individual so demoted may not be placed on administrative leave or any other category of paid leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the individual reports for duty. If an individual so demoted does not report for duty, such individual shall not receive pay or other benefits pursuant to subsection (e)(5).
Notice to Congress
Not later than 30 days after removing or demoting an individual under subsection (a), the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives and to each Member of Congress representing a district in the State or territory where the facility where the individual was employed immediately before being removed or demoted is located notice in writing of such removal or demotion and the reason for such removal or demotion.
Procedure
Subsection (b) of section 7513 of title 5 shall apply with respect to a removal or a demotion under this section, except that the period for notice and response, which includes the advance notice period required by paragraph (1) of such subsection and the response period required by paragraph (2) of such subsection, shall not exceed a total of 10 calendar days.
The procedures under chapter 43 of title 5 shall not apply to a removal or demotion under this section.
Subject to subparagraph (B) and subsection (e), any removal or demotion under subsection (a) may be appealed to the Merit Systems Protection Board.
An appeal under subparagraph (A) of a removal or demotion may only be made if such appeal is made not later than 7 days after the date of such removal or demotion.
Expedited Review by MSPB
Upon receipt of an appeal under subsection (d)(3)(A), the Merit Systems Protection Board shall expedite any such appeal under such section and, in any such case, shall issue a decision not later than 60 days after the date of the appeal.
Notwithstanding section 7701(c)(1)(B) of title 5, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove or demote an employee under subsection (a) if the decision is supported by substantial evidence.
The decision of the Merit Systems Protection Board under paragraph (1), and any final removal or demotion described in paragraph (4), may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5. Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.
In any case in which the Merit Systems Protection Board cannot issue a decision in accordance with the 60-day requirement under paragraph (1), the removal or demotion is final. In such a case, the Merit Systems Protection Board shall, within 14 days after the date that such removal or demotion is final, submit to Congress and the Committees on Veterans' Affairs of the Senate and House of Representatives and to each Member of Congress representing a district in the State or territory where the facility where the individual was employed immediately before being removed or demoted is located a report that explains the reasons why a decision was not issued in accordance with such requirement.
The Merit Systems Protection Board may not stay any removal or demotion under this section.
During the period beginning on the date on which an individual appeals a removal from the civil service under subsection (d) and ending on the date that the Merit Systems Protection Board issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited.
Whistleblower protection
In the case of an individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove or demote such individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.
In the case of an individual who has filed a whistleblower complaint, as such term is defined in section 741 of this title, the Secretary may not remove or demote such individual under subsection (a) until a final decision with respect to the whistleblower complaint has been made.
Termination of investigations by Office of Special Counsel
Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Department after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation. Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee.
Relation to other authorities
The authority provided by this section is in addition to the authority provided by subchapter V of chapter 74 of this title, subchapter II of chapter 75 of title 5, chapter 43 of such title, and any other authority with respect to disciplining an individual.
Definitions
In this section:
The term individual means an individual occupying a position at the Department but does not include—
an individual, as that term is defined in section 713(g)(1); or
a political appointee.
The term grade has the meaning given such term in section 7511(a) of title 5.
The term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
The term political appointee means an individual who is—
employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);
a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or
employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.
.
Clerical and conforming amendments
Clerical
The table of sections at the beginning of chapter 7 is amended by inserting after the item relating to section 713 the following new item:
715. Employees: removal or demotion based on performance or misconduct.
.
Conforming
Section 4303(f) of title 5, United States Code, is amended—
by striking or
at the end of paragraph (2);
by striking the period at the end of paragraph (3) and inserting , or
; and
by adding at the end the following:
any removal or demotion under section 715 of title 38.
.
Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain crimes
Reduction of benefits
In general
Chapter 7 is further amended by inserting after section 715, as added by section 3, the following new section:
Senior executives: reduction of benefits of individuals convicted of certain crimes
Reduction of annuity for removed employee
The Secretary shall order that the covered service of an individual removed from a senior executive position for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, or any other provision of law shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—
the individual is convicted of a felony that influenced the individual’s performance while employed in the senior executive position; and
before such order is made, the individual is afforded—
notice of the order and an opportunity to respond to the order; and
consistent with paragraph (2), an opportunity to appeal the order to another department or agency of the Federal Government.
If a final decision on an appeal made under paragraph (1)(B)(ii) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under paragraph (1) shall be final and not subject to further appeal.
Reduction of annuity for retired employee
The Secretary may order that the covered service of an individual who is subject to a removal or transfer action for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, or any other provision of law but who leaves employment at the Department prior to the issuance of a final decision with respect to such action shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—
the individual is convicted of a felony that influenced the individual’s performance while employed in the senior executive position; and
before such order is made, the individual is afforded—
notice of the order and an opportunity to respond to the order; and
an opportunity to appeal the order to another department or agency of the Federal Government.
The Secretary shall make such an order not later than 7 days after the date of the conclusion of a hearing referred to in paragraph (1)(B) that determines that such order is lawful.
Administrative requirements
Not later than 30 days after the Secretary issues an order under subsection (a) or (b), the Director of the Office of Personnel Management shall recalculate the annuity of the individual.
A decision regarding whether the covered service of an individual shall be taken into account for purposes of calculating an annuity under subsection (a) or (b) is final and may not be reviewed by any department or agency or any court.
Lump-Sum Annuity Credit
Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.
Spouse or children exception
The Secretary, in consultation with the Office of Personnel Management, shall prescribe regulations that may provide for the payment to the spouse or children of any individual referred to in subsection (a) or (b) of any amounts which (but for this subsection) would otherwise have been nonpayable by reason of such subsections. Any such regulations shall be consistent with the requirements of section 8332(o)(5) and 8411(l)(5) of title 5, as the case may be.
Definitions
In this section:
The term covered service
means, with respect to an individual subject to a removal or transfer for performance or misconduct under section 713 of this title, chapter 43 or subchapter V of chapter 75 of title 5, or any other provision of law, the period of service beginning on the date that the Secretary determines under such applicable provision that the individual engaged in activity that gave rise to such action and ending on the date that the individual is removed or transferred from the senior executive position or leaves employment at the Department prior to the issuance of a final decision with respect to such action, as the case may be.
The term lump-sum credit
has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.
The term senior executive position
has the meaning given such term in section 713(g)(3) of this title.
The term service
has the meaning given such term in section 8331(12) or section 8401(26) of title 5, as the case may be.
.
Clerical amendment
The table of sections at the beginning of chapter 7 of such title is amended by inserting after the item relating to section 715, as added by section 3, the following new item:
717. Senior executives: reduction of benefits of individuals convicted of certain crimes.
.
Application
Section 717 of title 38, United States Code, as added by subsection (a)(1), shall apply to any action of removal or transfer under section 713 of title 38, United States Code, commencing on or after the date of the enactment of this Act.
Authority to recoup bonuses or awards paid to employees of Department of Veterans Affairs
In general
Chapter 7 is further amended by inserting after section 717, as added by section 4, the following new section:
Recoupment of bonuses or awards paid to employees of Department
Recoupment
Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5, including under chapters 45 or 53 of such title, or this title if—
the Secretary determines such repayment appropriate pursuant to regulations prescribed under subsection (c); and
before such repayment, the employee is afforded—
notice of the order and an opportunity to respond to the order; and
an opportunity to appeal the order to another department or agency of the Federal Government.
Review
Upon the issuance of an order by the Secretary under subsection (a), the employee shall be afforded—
notice of the order and an opportunity to respond to the order; and
consistent with paragraph (2), an opportunity to appeal the order to another department or agency of the Federal Government.
If a final decision on an appeal made under paragraph (1)(B) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under subsection (a) shall be final and not subject to further appeal.
Regulations
The Secretary shall prescribe regulations to carry out this section.
.
Clerical amendment
The table of sections at the beginning of such chapter, as amended by section 4, is amended by inserting after the item relating to section 717 the following new item:
719. Recoupment of bonuses or awards paid to employees of Department.
.
Effective date
Section 719 of title 38, United States Code, as added by subsection (a), shall apply with respect to an award or bonus paid by the Secretary of Veterans Affairs to an employee of the Department of Veterans Affairs on or after the date of the enactment of this Act.
Construction
Nothing in this Act or the amendments made by this Act may be construed to modify the certification issued by the Office of Personnel Management and the Office of Management and Budget regarding the performance appraisal system of the Senior Executive Service of the Department of Veterans Affairs.
Authority to recoup relocation expenses paid to or on behalf of employees of Department of Veterans Affairs
In general
Chapter 7 is further amended by adding at the end the following new section:
Recoupment of relocation expenses paid on behalf of employees of Department
Recoupment
Notwithstanding any other provision of law, the Secretary may direct an employee of the Department to repay the amount, or a portion of the amount, paid to or on behalf of the employee under title 5 for relocation expenses, including any expenses under section 5724 or 5724a of such title, or this title if—
the Secretary determines that—
the employee has committed an act of fraud, waste, or malfeasance; and
such repayment is appropriate pursuant to regulations prescribed under subsection (c); and
before such repayment is ordered, the individual is afforded—
notice of the determination of the Secretary and an opportunity to respond to the determination; and
consistent with paragraph (2), an opportunity to appeal the determination to another department or agency of the Federal Government.
If a final decision on an appeal made under paragraph (1)(B)(ii) is not made by the applicable department or agency of the Federal Government within 30 days after receiving such appeal, the order of the Secretary under paragraph (1) shall be final and not subject to further appeal.
Review
A decision regarding a repayment by an employee pursuant to subsection (a)(1)(B)(ii) is final and may not be reviewed by any department, agency, or court.
Regulations
The Secretary shall prescribe regulations to carry out this section.
.
Clerical amendment
The table of sections at the beginning of such chapter is further amended by adding at the end the following new item:
721. Recoupment of relocation expenses paid to or on behalf of employees of Department.
.
Effective date
Section 721 of title 38, United States Code, as added by subsection (a), shall apply with respect to an amount paid by the Secretary of Veterans Affairs to or on behalf of an employee of the Department of Veterans Affairs for relocation expenses on or after the date of the enactment of this Act.
Construction
Nothing in this section or the amendments made by this section may be construed to modify the certification issued by the Office of Personnel Management and the Office of Management and Budget regarding the performance appraisal system of the Senior Executive Service of the Department of Veterans Affairs.
Senior executives: personnel actions based on performance or misconduct
Expansion of covered personnel actions
Section 713 is amended in subsection (a)(1) by inserting after such removal.
the following: If the Secretary determines that the performance or misconduct of such an individual does not merit removal from the senior executive service position, the Secretary may suspend, reprimand, or admonish the individual.
.
Removal of appeal to Merit Systems Protection Board
Section 713 is further amended—
in subsection (a)—
in paragraph (1), by striking so removes
and inserting removes
; and
by adding at the end the following:
On the date that is 5 days before taking any personnel action against a senior executive under paragraph (1), the Secretary shall provide the individual with—
notice in writing of the proposed personnel action, including the reasons for such action; and
an opportunity to respond to the proposed personnel action within the 5-day period.
;
in subsection (b)(2)—
by striking under this section
and inserting under section 723
; and
by striking the second sentence;
in subsection (c)—
by striking 30
and inserting 5
; and
by striking and the reason for such removal or transfer
and inserting , the reason for such removal or transfer, the name and position of the employee, and all charging documents and evidence pertaining to such removal or transfer
;
by striking subsections (d) and (e) and inserting the following:
Procedure
The procedures under title 5 shall not apply to any personnel action under this section.
A personnel action under this section—
consistent with paragraph (3), may be appealed to the Senior Executive Disciplinary Appeals Board under section 723; and
may not be appealed to the Merit Systems Protection Board under section 7701 of title 5.
An appeal of a personnel action pursuant to paragraph (2)(A) must be filed with the Senior Executive Disciplinary Appeals Board not later than the date that is 7 days after the date of such action. If such appeal is not made within the 7-day period, the personnel action shall be final and not subject to further appeal.
;
by redesignating subsections (f) and (g) as subsections (e) and (f), respectively; and
in subsection (f), as redesignated by paragraph (5), by adding at the end the following:
The term suspend
means the placing of an individual in a temporary status without duties and pay for a period greater than 14 days.
.
Removal of expedited procedures
Section 707 of the Veterans Access, Choice, and Accountability Act of 2014 (38 U.S.C. 713 note) is amended by—
striking subsection (b); and
redesignating subsections (c) and (d) as subsections (b) and (c), respectively.
Senior Executive Disciplinary Appeals Board
Chapter 7 is further amended by inserting after section 721, as added by section 6, the following new section:
Senior Executive Disciplinary Appeals Board
The Secretary shall from time to time appoint a board to hear appeals of any personnel action taken under section 713. Such board shall be known as the Senior Executive Disciplinary Appeals Board (hereinafter referred to as the Board
). Each Board shall consist of three employees of the Department. The Board shall have exclusive jurisdiction to review any personnel action under section 713.
Upon an appeal of such a personnel action, the Senior Executive Disciplinary Appeals Board shall—
review all evidence provided by the Secretary and the appellant; and
issue a decision not later than 21 days after the date of the appeal.
The Board shall afford an employee appealing a personnel action an opportunity for an oral hearing. If such a hearing is held, the appellant may be represented by counsel.
The Board shall uphold the decision of the Secretary if—
there is substantial evidence supporting the decision; and
the applicable personnel action is within the tolerable bounds of reasonableness.
If the Board issues a decision under this section that reverses or otherwise mitigates the applicable personnel action, the Secretary may reverse the decision of the Board. Consistent with the requirements of subsection (g), the decision of the Secretary under this subsection shall be final.
In any case in which the Board cannot issue a decision in accordance with the 21-day requirement under subsection (b)(2), the personnel action is final.
A petition to review a final order or final decision of the Secretary or the Board under this section shall be filed in the United States Court of Appeals for the Federal Circuit. Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.
During the period beginning on the date on which an individual appeals a removal from the civil service under section 713(d) and ending on the date that the Board or Secretary issues a final decision on such appeal, such individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits.
.
Technical and clerical amendments
Technical amendment
The section heading of section 713 is amended to read as follows: Senior executives: personnel actions based on performance or misconduct.
Clerical amendments
The table of contents for such chapter is further amended—
by striking the item relating to section 713 and inserting the following:
713. Senior executives: personnel actions based on performance or misconduct.
;
by adding at the end the following:
723. Senior Executive Disciplinary Appeals Board.
.
Rule of construction
Nothing in this section or section 731 of title 38, United States Code, (as added by subsection (c)) shall be construed to apply to an appeal of a removal, transfer, or other personnel action that was pending before the date of the enactment of this Act.
Office of Accountability and Whistleblower Protection
In general
Chapter 3 of title 38, United States Code, is amended by adding at the end the following new section:
Office of Accountability and Whistleblower Protection
Establishment
There is established in the Department an office to be known as the Office of Accountability and Whistleblower Protection (in this section referred to as the Office
).
Head of Office
The head of the Office shall be responsible for the functions of the Office and shall be appointed by the President pursuant to section 308(a) of this title.
The head of the Office shall be known as the Assistant Secretary for Accountability and Whistleblower Protection
.
The Assistant Secretary shall report directly to the Secretary on all matters relating to the Office.
Notwithstanding section 308(b) of this title, the Secretary may only assign to the Assistant Secretary responsibilities relating to the functions of the Office set forth in subsection (c).
Functions
The functions of the Office are as follows:
Advising the Secretary on all matters of the Department relating to accountability, including accountability of employees of the Department, retaliation against whistleblowers, and such matters as the Secretary considers similar and affect public trust in the Department.
Issuing reports and providing recommendations related to the duties described in subparagraph (A).
Receiving whistleblower complaints.
Referring whistleblower complaints received under subparagraph (C) for investigation to the Office of the Medical Inspector, the Office of Inspector General, or other investigative entity, as appropriate, if the Assistant Secretary has reason to believe the whistleblower complaint is evidence of a violation of a provision of law, mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety.
Receiving and referring complaints from the Special Counsel for investigation to the Medical Inspector of the Department, the Inspector General of the Department, or such other person with investigatory authority, as the Assistant Secretary considers appropriate.
Recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by the Inspector General of the Department, the Medical Inspector of the Department, the Special Counsel, and the Comptroller General of the United States, including the imposition of disciplinary actions and other corrective actions contained in such recommendations.
Analyzing data from the Office and the Office of Inspector General telephone hotlines, other whistleblower complaints, disaggregated by facility and area of health care if appropriate, and relevant audits and investigations to identify trends and issue reports to the Secretary based on analysis conducted under this subparagraph.
Receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving—
an individual in a senior executive position (as defined in section 713(d) of this title) in the Department;
an individual employed in a confidential, policy-making, policy-determining, or policy-advocating position in the Department; or
a supervisory employee.
Making such recommendations to the Secretary for disciplinary action as the Assistant Secretary considers appropriate after substantiating any allegation of misconduct or poor performance pursuant to an investigation carried out as described in subparagraph (F) or (H).
In carrying out the functions of the Office, the Assistant Secretary shall ensure that the Office maintains a toll-free telephone number and Internet website to receive anonymous whistleblower complaints.
In any case in which the Assistant Secretary receives a whistleblower complaint from an employee of the Department under paragraph (1)(C), the Assistant Secretary may not disclose the identity of the employee without the consent of the employee, except in accordance with the provisions of section 552a of title 5, or as required by any other applicable provision of Federal law.
Relation to Office of General Counsel
The Office shall not be established as an element of the Office of the General Counsel and the Assistant Secretary may not report to the General Counsel.
Reports
Not later than June 30 of each calendar year, beginning with June 30, 2017, the Assistant Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report on the activities of the Office during the calendar year in which the report is submitted.
Each report submitted under subparagraph (A) shall include, for the period covered by the report, the following:
A full and substantive analysis of the activities of the Office, including such statistical information as the Assistant Secretary considers appropriate.
Identification of any issues reported to the Secretary under subsection (c)(1)(G), including such data as the Assistant Secretary considers relevant to such issues and any trends the Assistant Secretary may have identified with respect to such issues.
Identification of such concerns as the Assistant Secretary may have regarding the size, staffing, and resources of the Office and such recommendations as the Assistant Secretary may have for legislative or administrative action to address such concerns.
Such recommendations as the Assistant Secretary may have for legislative or administrative action to improve—
the process by which concerns are reported to the Office; and
the protection of whistleblowers within the Department.
Such other matters as the Assistant Secretary considers appropriate regarding the functions of the Office or other matters relating to the Office.
If the Secretary receives a recommendation for disciplinary action under subsection (c)(1)(I) and does not take or initiate the recommended disciplinary action before the date that is 60 days after the date on which the Secretary received the recommendation, the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a detailed justification for not taking or initiating such disciplinary action.
Definitions
In this section:
The term supervisory employee means an employee of the Department who is a supervisor as defined in section 7103(a) of title 5.
The term whistleblower means one who makes a whistleblower complaint.
The term whistleblower complaint means any disclosure of information by an employee of the Department or individual applying to become an employee of the Department which the employee or individual reasonably believes evidences—
a violation of a provision of law; or
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
.
Conforming amendment
Section 308(b) of such title is amended by adding at the end the following new paragraph:
The functions set forth in section 323(c) of this title.
.
Clerical amendment
The table of sections at the beginning of chapter 3 of such title is amended by adding at the end the following new item:
323. Office of Accountability and Whistleblower Protection.
.
Treatment of whistleblower complaints in Department of Veterans Affairs
In general
Chapter 7 is further amended by adding at the end the following new subchapter:
Whistleblower complaints
Whistleblower complaint defined
In this subchapter, the term whistleblower complaint means a complaint by an employee of the Department disclosing, or assisting another employee to disclose, a potential violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.
Treatment of whistleblower complaints
Filing
In addition to any other method established by law in which an employee may file a whistleblower complaint, an employee of the Department may file a whistleblower complaint in accordance with subsection (g) with a supervisor of the employee.
Except as provided by subsection (d)(1), in making a whistleblower complaint under paragraph (1), an employee shall file the initial complaint with the immediate supervisor of the employee.
Notification
Not later than 4 business days after the date on which a supervisor receives a whistleblower complaint by an employee under this section, the supervisor shall notify, in writing, the employee of whether the supervisor determines that there is a reasonable likelihood that the complaint discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. The supervisor shall retain written documentation regarding the whistleblower complaint and shall submit to the next-level supervisor a written report on the complaint.
On a monthly basis, the supervisor shall submit to the appropriate director or other official who is superior to the supervisor a written report that includes the number of whistleblower complaints received by the supervisor under this section during the month covered by the report, the disposition of such complaints, and any actions taken because of such complaints pursuant to subsection (c). In the case in which such a director or official carries out this paragraph, the director or official shall submit such monthly report to—
the supervisor of the director or official;
the Committees on Veterans’ Affairs of the Senate and House or Representatives; and
each Member of Congress representing a district in the State or territory where the facility where the supervisor is employed is located.
Positive determination
If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint of an employee, the supervisor shall include in the notification to the employee under such subsection the specific actions that the supervisor will take to address the complaint.
Filing complaint with next-Level supervisors
If any circumstance described in paragraph (3) is met, an employee may file a whistleblower complaint in accordance with subsection (g) with the next-level supervisor who shall treat such complaint in accordance with this section.
An employee may file a whistleblower complaint with the Secretary if the employee has filed the whistleblower complaint to each level of supervisors between the employee and the Secretary in accordance with paragraph (1).
A circumstance described in this paragraph are any of the following circumstances:
A supervisor does not make a timely determination under subsection (b)(1) regarding a whistleblower complaint.
The employee who made a whistleblower complaint determines that the supervisor did not adequately address the complaint pursuant to subsection (c).
The immediate supervisor of the employee is the basis of the whistleblower complaint.
Transfer of employee who files whistleblower complaint
If a supervisor makes a positive determination under subsection (b)(1) regarding a whistleblower complaint filed by an employee, the Secretary shall—
inform the employee of the ability to volunteer for a transfer in accordance with section 3352 of title 5; and
give preference to the employee for such a transfer in accordance with such section.
Prohibition on exemption
The Secretary may not exempt any employee of the Department from being covered by this section.
Whistleblower complaint form
A whistleblower complaint filed by an employee under subsection (a) or (d) shall consist of the form described in paragraph (2) and any supporting materials or documentation the employee determines necessary.
The form described in this paragraph is a form developed by the Secretary, in consultation with the Special Counsel, that includes the following:
An explanation of the purpose of the whistleblower complaint form.
Instructions for filing a whistleblower complaint as described in this section.
An explanation that filing a whistleblower complaint under this section does not preclude the employee from any other method established by law in which an employee may file a whistleblower complaint.
A statement directing the employee to information accessible on the Internet website of the Department as described in section 745(c).
Fields for the employee to provide—
the date that the form is submitted;
the name of the employee;
the contact information of the employee;
a summary of the whistleblower complaint (including the option to append supporting documents pursuant to paragraph (1)); and
proposed solutions to complaint.
Any other information or fields that the Secretary determines appropriate.
The Secretary, in consultation with the Special Counsel, shall develop the form described in paragraph (2) by not later than 60 days after the date of the enactment of this section.
Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints
In general
In accordance with paragraph (2), the Secretary shall carry out the following adverse actions against supervisory employees whom the Secretary, an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or the Inspector General of the Department determines committed a prohibited personnel action described in subsection (c):
With respect to the first offense, an adverse action that is not less than a 14-day suspension and not more than removal.
With respect to the second offense, removal.
Except as provided by subparagraph (B), with respect to a supervisory employee subject to an adverse action under this section who is—
an individual as that term is defined in section 715(i)(1) of this title, the procedures under subsections (d) and (e) of section 715 of this title shall apply; and
an individual as that term is defined in section 713(g)(1) of this title, the procedures under section 713(d) of this title shall apply.
An employee who is notified of being the subject of a proposed adverse action under paragraph (1) may not be given more than 10 days following such notification to provide evidence to dispute such proposed adverse action. If the employee does not provide any such evidence, or if the Secretary determines that such evidence is not sufficient to reverse the determination to propose the adverse action, the Secretary shall carry out the adverse action following such 10-day period.
Limitation on other adverse actions
With respect to a prohibited personnel action described in subsection (c), if the Secretary carries out an adverse action against a supervisory employee, the Secretary may carry out an additional adverse action under this section based on the same prohibited personnel action if the total severity of the adverse actions do not exceed the level specified in subsection (a).
Prohibited personnel action described
A prohibited personnel action described in this subsection is any of the following actions:
Taking or failing to take a personnel action in violation of section 2302 of title 5 against an employee relating to the employee—
filing a whistleblower complaint in accordance with section 742 of this title;
filing a whistleblower complaint with the Inspector General of the Department, the Special Counsel, or Congress;
providing information or participating as a witness in an investigation of a whistleblower complaint in accordance with section 742 or with the Inspector General of the Department, the Special Counsel, or Congress;
participating in an audit or investigation by the Comptroller General of the United States;
refusing to perform an action that is unlawful or prohibited by the Department; or
engaging in communications that are related to the duties of the position or are otherwise protected.
Preventing or restricting an employee from making an action described in any of subparagraphs (A) through (F) of paragraph (1).
Conducting a peer review or opening a retaliatory investigation relating to an activity of an employee that is protected by section 2302 of title 5.
Requesting a contractor to carry out an action that is prohibited by section 4705(b) or section 4712(a)(1) of title 41, as the case may be.
Evaluation criteria of supervisors and treatment of bonuses
Evaluation criteria
In evaluating the performance of supervisors of the Department, the Secretary shall include the criteria described in paragraph (2).
The criteria described in this subsection are the following:
Whether the supervisor treats whistleblower complaints in accordance with section 742.
Whether the appropriate deciding official, performance review board, or performance review committee determines that the supervisor was found to have committed a prohibited personnel action described in section 743(b) by an administrative judge, the Merit Systems Protection Board, the Office of Special Counsel, an adjudicating body provided under a union contract, a Federal judge, or, in the case of a settlement of a whistleblower complaint (regardless of whether any fault was assigned under such settlement), the Secretary.
Bonuses
The Secretary may not pay to a supervisor described in subsection (a)(2)(B) an award or bonus under this title or title 5, including under chapter 45 or 53 of such title, during the 1-year period beginning on the date on which the determination was made under such subsection.
Notwithstanding any other provision of law, the Secretary shall issue an order directing a supervisor described in subsection (a)(2)(B) to repay the amount of any award or bonus paid under this title or title 5, including under chapter 45 or 53 of such title, if—
such award or bonus was paid for performance during a period in which the supervisor committed a prohibited personnel action as determined pursuant to such subsection (a)(2)(B);
the Secretary determines such repayment appropriate pursuant to regulations prescribed by the Secretary to carry out this section; and
before such order is made, the supervisor is afforded—
notice of the order and an opportunity to respond to the order; and
an opportunity to appeal the order to another department or agency of the Federal Government, except that—
any such department or agency shall issue a final decision with respect to such appeal not later than the date that is 30 days after the date the department or agency received such appeal; and
if such a final decision is not made by the applicable department or agency within 30 days after receiving such appeal, the order of the Secretary shall be final and not subject to further appeal.
Training regarding whistleblower complaints
Training
The Secretary, in coordination with the Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) of the Inspector General Act of 1978 (5 U.S.C. App.), shall annually provide to each employee of the Department training regarding whistleblower complaints, including—
an explanation of each method established by law in which an employee may file a whistleblower complaint;
an explanation of prohibited personnel actions described by section 743(c) of this title;
with respect to supervisors, how to treat whistleblower complaints in accordance with section 742 of this title;
the right of the employee to petition Congress regarding a whistleblower complaint in accordance with section 7211 of title 5;
an explanation that the employee may not be prosecuted or reprised against for disclosing information to Congress in instances where such disclosure is permitted by law, including under sections 5701, 5705, and 7332 of this title, under section 552a of title 5 (commonly referred to as the Privacy Act), under chapter 93 of title 18, and pursuant to regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191);
an explanation of the language that is required to be included in all nondisclosure policies, forms, and agreements pursuant to section 115(a)(1) of the Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 2302 note); and
the right of contractors to be protected from reprisal for the disclosure of certain information under section 4705 or 4712 of title 41.
Certification
The Secretary shall annually provide training on merit system protection in a manner that the Special Counsel certifies as being satisfactory.
Publication
The Secretary shall publish on the Internet website of the Department, and display prominently at each facility of the Department, the rights of an employee to file a whistleblower complaint, including the information described in paragraphs (1) through (7) of subsection (a).
The Secretary shall publish on the Internet website of the Department, the whistleblower complaint form described in section 742(g)(2).
Notice to Congress
Not later than 30 days after the date on which the Secretary receives from the Special Counsel information relating to a whistleblower complaint pursuant to section 1213 of title 5, the Secretary shall notify the Committees on Veterans’ Affairs of the House of Representatives and the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate and each Member of Congress representing a district in the State or territory where a facility relevant to the whistleblower complaint is located of such information, including the determination made by the Special Counsel.
.
Conforming and clerical amendments
Conforming amendment
Such chapter is further amended by inserting before section 701 the following:
General employee matters
.
Clerical amendments
The table of sections at the beginning of such chapter is amended—
by inserting before the item relating to section 701 the following new item:
Subchapter I—General employee matters
;
by adding at the end the following new items:
Subchapter II—Whistleblower complaints
741. Whistleblower complaint defined.
742. Treatment of whistleblower complaints.
743. Adverse actions against supervisory employees who commit prohibited personnel actions relating to whistleblower complaints.
744. Evaluation criteria of supervisors and treatment of bonuses.
745. Training regarding whistleblower complaints.
746. Notice to Congress.
.
Appeals reform
Definitions
Section 101 of title 38, United States Code, is amended by adding at the end the following new paragraphs:
The term Agency of Original Jurisdiction means the activity which entered the original determination with regard to a claim for benefits under this title.
The term relevant evidence means evidence that tends to prove or disprove a matter in issue.
.
Notice to claimants of required information and evidence
Section 5103 of title 38, United States Code, is amended—
in subsection (a)(2)(B)(i) by striking , a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;
and inserting or a supplemental claim;
; and
in subsection (b) by adding at the end the following new paragraph:
Nothing in this section shall require notice to be sent for a supplemental claim that is filed within the timeframe set forth in subsections (a)(2)(B) and (a)(2)(D) of section 5110 of this title.
.
Rule with respect to disallowed claims
Section 5103A(f) of title 38, United States Code, is amended to read as follows:
Rule with respect to disallowed claims
Nothing in this section shall be construed to require the Secretary to readjudicate a claim that has been disallowed except when new and relevant evidence is presented or secured, as described in section 5108 of this title.
.
Other matters
Chapter 51 of title 38, United States Code, is amended by inserting after section 5103A the following new sections:
Applicability of duty to assist
Time frame
The Secretary’s duty to assist under section 5103A of this title shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the decision of the agency of original jurisdiction decision with respect to such claim, or supplemental claim, under section 5104 of this title.
Non-Applicability to certain reviews and appeals
The Secretary’s duty to assist under section 5103A of this title shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals.
Correction of duty To assist errors
If, during review of the decision of the agency of original jurisdiction under section 5104B of this title, the higher-level reviewer identifies an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction being reviewed, the higher-level reviewer shall return the claim for correction of such error and readjudication unless the claim can be granted in full.
If the Board, during review on appeal of a decision of the agency of original jurisdiction decision, identifies an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction on appeal, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication unless the claim can be granted in full. Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title.
Binding nature of favorable findings
Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.
Higher-level review by the agency of original jurisdiction
In general
The claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the jurisdiction of the agency of original jurisdiction.
Time and manner of request
A request for higher-level review by the agency of original jurisdiction must be in writing in the form prescribed by the Secretary and made within 1 year of the notice of the decision of the agency of original jurisdiction. Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction.
Decision
Notice of a higher-level review decision under this section shall be provided in writing.
Evidentiary record for review
The evidentiary record before the higher-level reviewer shall be limited to the evidence of record in the decision of the agency of original jurisdiction being reviewed.
De novo review
Higher-level review under this section shall be de novo.
.
Notice of decisions
Section 5104(b) of title 38, United States Code, is amended to read as follows:
In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include—
identification of the issues adjudicated;
a summary of the evidence considered by the Secretary;
a summary of the applicable laws and regulations;
identification of findings favorable to the claimant;
identification of elements not satisfied leading to the denial;
an explanation of how to obtain or access evidence used in making the decision; and
if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.
.
Supplemental claims
Section 5108 of title 38, United States Code, is amended to read as follows:
Supplemental claims
If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration any evidence added to the record prior to the former disposition of the claim.
.
Remands for medical opinions
Section 5109 of title 38, United States Code, is amended by adding at the end the following new subsection:
The Board of Veterans’ Appeals may remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion under this section to correct an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title when such error occurred prior to the decision of the agency of original jurisdiction on appeal. The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.
.
Effective dates of awards
Section 5110 of title 38, United States Code, is amended—
by striking subsection (a) and inserting the following new subsection (a):
Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
For purposes of applying the effective date rules in this section, the date of application shall be considered the date of the filing of the initial application for a benefit provided that the claim is continuously pursued by filing any of the following either alone or in succession:
A request for higher-level review under section 5104B of this title within 1 year of an agency of original jurisdiction decision.
A supplemental claim under section 5108 of this title within 1 year of an agency of original jurisdiction decision.
A notice of disagreement within 1 year of an agency of original jurisdiction decision.
A supplemental claim under section 5108 of this title within 1 year of a decision of the Board of Veterans’ Appeals.
Except as otherwise provided in this section, for supplemental claims received more than 1 year after an agency of original jurisdiction decision or a decision by the Board of Veterans’ Appeals, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.
; and
in subsection (i) by—
striking reopened
and inserting readjudicated
;
striking material
and inserting relevant
; and
striking reopening
and inserting readjudication
.
Definition of award or increased reward
Section 5111(d)(1) of title 38, United States Code, is amended by striking or reopened award;
and inserting award or award based on a supplemental claim;
.
Recognition of agents and attorneys generally
Section 5904 of title 38, United States Code, is amended—
in subsection (c)(1) by striking notice of disagreement is filed
and inserting claimant is provided notice of the initial decision of the agency of original jurisdiction under section 5104 of this title
; and
in subsection (c)(2) by striking notice of disagreement is filed
and inserting claimant is provided notice of the initial decision of the agency of original jurisdiction under section 5104 of this title
.
Correction of obvious errors
Section 7103 of title 38, United States Code, is amended—
in subsection (b)(1)(A) by striking heard
and inserting decided
; and
in subsection (b)(1)(B) by striking heard
and inserting decided
.
Jurisdiction of Board
Section 7104(b) of title 38, United States Code, is amended by striking reopened
and inserting readjudicated
.
Filing of appeal
Section 7105 of title 38, United States Code, is amended—
in subsection (a)—
by striking the first sentence and inserting Appellate review will be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.
; and
by striking hearing and
;
by amending subsection (b) to read as follows:
Except in the case of simultaneously contested claims, notice of disagreement shall be filed within 1 year from the date of the mailing of notice of the decision of the agency of original jurisdiction under section 5104, 5104B, or 5108 of this title. A notice of disagreement postmarked before the expiration of the 1-year period will be accepted as timely filed. A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.
Notices of disagreement must be in writing, must set out specific allegations of error of fact or law, and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. Not more than one recognized organization, attorney, or agent will be recognized at any one time in the prosecution of a claim. Notices of disagreement must be filed with the Board.
The notice of disagreement shall indicate whether the claimant requests a hearing before the Board, requests an opportunity to submit additional evidence without a Board hearing, or requests review by the Board without a hearing or submission of additional evidence. If the claimant does not expressly request a Board hearing in the notice of disagreement, no Board hearing will be held.
;
by amending subsection (c) to read as follows:
If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim will not thereafter be readjudicated or allowed, except as may otherwise be provided by section 5104B or 5108 of this title or regulations not inconsistent with this title.
;
by striking subsections (d)(1) through (d)(5);
by adding a new subsection (d) to read as follows:
The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed.
; and
by striking subsection (e).
Simultaneously contested claims
Subsection (b) of section 7105A of title 38, United States Code, is amended to read as follows:
The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of 30 days shall be allowed for filing a brief or argument in response thereto. Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.
.
Administrative appeals
Strike section 7106 of title 38, United States Code.
Dockets and hearings
Section 7107 of title 38, United States Code, is amended—
by amending subsection (a) to read as follows:
The Board shall maintain two separate dockets. A non-hearing option docket shall be maintained for cases in which no Board hearing is requested and no additional evidence will be submitted. A separate and distinct hearing option docket shall be maintained for cases in which a Board hearing is requested in the notice of disagreement or in which no Board hearing is requested, but the appellant requests, in the notice of disagreement, an opportunity to submit additional evidence. Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the Board’s non-hearing option docket or the hearing option docket.
;
by amending subsection (b) to read as follows:
A case on either the Board’s non-hearing option docket or hearing option docket, may, for cause shown, be advanced on motion for earlier consideration and determination. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only—
if the case involves interpretation of law of general application affecting other claims;
if the appellant is seriously ill or is under severe financial hardship; or
for other sufficient cause shown.
;
by amending subsection (c) to read as follows:
For cases on the Board hearing option docket in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held—
at its principal location, or
by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings.
Upon notification of a Board hearing at the Board’s principal location as described in subsection (c)(1)(A) of this section, the appellant may alternatively request a hearing as described in subsection (c)(1)(B) of this section. If so requested, the Board shall grant such request.
Upon notification of a Board hearing by picture and voice transmission as described in subsection (c)(1)(B) of this section, the appellant may alternatively request a hearing as described in subsection (c)(1)(A) of this section. If so requested, the Board shall grant such request.
; and
by striking subsections (d) and (e) and redesignating subsection (f) as subsection (d).
Independent medical opinions
Strike section 7109 of title 38, United States Code.
Revision of decisions on grounds of clear and unmistakable error
Section 7111(e) of title 38, United States Code, is amended by striking merits, without referral to any adjudicative or hearing official acting on behalf of the Secretary.
and inserting merits.
.
Evidentiary record
Chapter 71 of title 38, United States Code, is amended by adding the following new section:
Evidentiary record before the board
Non-Hearing option docket
For cases in which a Board hearing is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the agency of original jurisdiction decision on appeal.
Hearing option docket
Except as provided in paragraph (2), for cases on the hearing option docket in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the agency of original jurisdiction decision on appeal.
The evidentiary record before the Board for cases on the hearing option docket in which a hearing is requested, shall include each of the following, which the Board shall consider in the first instance—
evidence submitted by the appellant and his or her representative, if any, at the Board hearing; and
evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing.
Except as provided in subparagraph (B) of this paragraph, for cases on the hearing option docket in which a hearing is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal.
The evidentiary record before the Board for cases on the hearing option docket in which a hearing is not requested, shall include each of the following, which the Board shall consider in the first instance—
evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement; and
evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.
.
Conforming amendment
The heading of section 7105 is amended by striking notice of disagreement and
.
Clerical amendments
Chapter 51
The table of sections at the beginning of chapter 51 of title 38, United States Code, is amended—
by inserting after the item relating to section 5103A the following new item:
5103B. Applicability of duty to assist.
;
by inserting after the item relating to section 5104 the following new items:
5104A. Binding nature of favorable findings.
5104B. Higher-level review by the agency of original jurisdiction.
;
by striking the item relating to section 5108 and inserting the following new item:
5108. Supplemental claims.
.
Chapter 71
The table of sections at the beginning of chapter 71 of title 38, United States Code, is amended—
by striking the item relating to section 7105 and inserting the following new item:
7105. Filing of appeal.
;
by striking the item relating to section 7106;
by striking the item relating to section 7109; and
by adding at the end the following new item:
7113. Evidentiary record before the Board.
.
Limitation on awards and bonuses paid to senior executive employees of Department of Veterans Affairs
Section 705 of the Veterans Access, Choice, and Accountability Act of 2014 (Public Law 113–146; 38 U.S.C. 703 note) is amended by striking the period at the end and inserting the following: , except that during each of fiscal years 2017 through 2021, no award or bonus may be paid to any employee of the Department of Veterans Affairs who is a member of the Senior Executive Service.
.
Clarification of emergency hospital care furnished by the Secretary of Veterans Affairs to certain veterans
In general
Chapter 17 of title 38, United States Code, is amended by inserting after section 1730A the following new section:
Examination and treatment for emergency medical conditions and women in labor
Medical screening examinations
In carrying out this chapter, if any enrolled veteran requests, or a request is made on behalf of the veteran, for examination or treatment for a medical condition, regardless of whether such condition is service-connected, at a hospital emergency department of a medical facility of the Department, the Secretary shall ensure that the veteran is provided an appropriate medical screening examination within the capability of the emergency department, including ancillary services routinely available to the emergency department, to determine whether an emergency medical condition exists.
Necessary stabilizing treatment for emergency medical conditions and labor
If an enrolled veteran comes to a medical facility of the Department and the Secretary determines that the veteran has an emergency medical condition, the Secretary shall provide either—
such further medical examination and such treatment as may be required to stabilize the medical condition; or
for the transfer of the veteran to another medical facility of the Department or a non-Department facility in accordance with subsection (c).
The Secretary is deemed to meet the requirement of paragraph (1)(A) with respect to an enrolled veteran if the Secretary offers the veteran the further medical examination and treatment described in such paragraph and informs the veteran (or an individual acting on behalf of the veteran) of the risks and benefits to the veteran of such examination and treatment, but the veteran (or individual) refuses to consent to the examination and treatment. The Secretary shall take all reasonable steps to secure the written informed consent of such veteran (or individual) to refuse such examination and treatment.
The Secretary is deemed to meet the requirement of paragraph (1) with respect to an enrolled veteran if the Secretary offers to transfer the individual to another medical facility in accordance with subsection (c) of this section and informs the veteran (or an individual acting on behalf of the veteran) of the risks and benefits to the veteran of such transfer, but the veteran (or individual) refuses to consent to the transfer. The hospital shall take all reasonable steps to secure the written informed consent of such veteran (or individual) to refuse such transfer.
Restriction of transfers until veteran stabilized
If an enrolled veteran at a medical facility of the Department has an emergency medical condition that has not been stabilized, the Secretary may not transfer the veteran to another medical facility of the Department or a non-Department facility unless—
the veteran (or a legally responsible individual acting on behalf of the veteran), after being informed of the obligation of the Secretary under this section and of the risk of transfer, requests in writing a transfer to another medical facility;
a physician has signed a certification (including a summary of the risks and benefits) that, based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the veteran and, in the case of labor, to the unborn child from effecting the transfer; or
if a physician is not physically present in the emergency department at the time a veteran is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician, in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and
the transfer is an appropriate transfer as described in paragraph (2).
An appropriate transfer to a medical facility is a transfer—
in which the transferring medical facility provides the medical treatment within the capacity of the facility that minimizes the risks to the health of the enrolled veteran and, in the case of a woman in labor, the health of the unborn child;
in which the receiving facility—
has available space and qualified personnel for the treatment of the veteran; and
has agreed to accept transfer of the veteran and to provide appropriate medical treatment;
in which the transferring facility sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the veteran has presented, available at the time of the transfer, including records related to the emergency medical condition of the veteran, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and
that meets such other requirements as the Secretary may find necessary in the interest of the health and safety of veterans transferred.
Charges
Nothing in this section may be construed to affect any charges that the Secretary may collect from a veteran or third party.
The Secretary shall treat any care provided by a non-Department facility pursuant to this section as care otherwise provided by a non-Department facility pursuant to this chapter for purposes of paying such non-Department facility for such care.
Nondiscrimination
A medical facility of the Department or a non-Department facility, as the case may be, that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an enrolled veteran who requires such specialized capabilities or facilities if the facility has the capacity to treat the veteran.
No delay in examination or treatment
A medical facility of the Department or a non-Department facility, as the case may be, may not delay provision of an appropriate medical screening examination required under subsection (a) or further medical examination and treatment required under subsection (b) of this section in order to inquire about the method of payment or insurance status of an enrolled veteran.
Whistleblower protections
The Secretary may not take adverse action against an employee of the Department because the employee refuses to authorize the transfer of an enrolled veteran with an emergency medical condition that has not been stabilized or because the employee reports a violation of a requirement of this section.
Definitions
In this section:
The term emergency medical condition means—
a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—
placing the health of the enrolled veteran (or, with respect to an enrolled veteran who is a pregnant woman, the health of the woman or her unborn child) in serious jeopardy;
serious impairment to bodily functions; or
serious dysfunction of any bodily organ or part; or
with respect to an enrolled veteran who is a pregnant woman having contractions—
that there is inadequate time to effect a safe transfer to another hospital before delivery; or
that transfer may pose a threat to the health or safety of the woman or the unborn child.
The term enrolled veteran means a veteran who is enrolled in the health care system established under section 1705(a) of this title.
The term to stabilize means, with respect to an emergency medical condition described in paragraph (1)(A), to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the enrolled veteran from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), to deliver (including the placenta).
The term stabilized means, with respect to an emergency medical condition described in paragraph (1)(A), that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), that the woman has delivered (including the placenta).
The term transfer means the movement (including the discharge) of an enrolled veteran outside the facilities of a medical facility of the Department at the direction of any individual employed by (or affiliated or associated, directly or indirectly, with) the Department, but does not include such a movement of an individual who—
has been declared dead; or
leaves the facility without the permission of any such person.
.
Clerical amendment
The table of sections of such chapter is amended by inserting after the item relating to section 1730A the following new item:
1730B. Examination and treatment for emergency medical conditions and women in labor.
.
Sense of Congress regarding American veterans disabled for life
Findings
Congress finds the following:
There are at least 3.6 million veterans currently living with service-connected disabilities.
As a result of their service, many veterans are permanently disabled throughout their lives and in many cases must rely on the support of their families and friends when these visible and invisible burdens become too much to bear alone.
October 5, which is the anniversary of the dedication of the American Veterans Disabled for Life Memorial, has been recognized as an appropriate day on which to honor American veterans disabled for life each year.
Sense of Congress
Congress—
expresses its appreciation to the men and women left permanently wounded, ill, or injured as a result of their service in the Armed Forces;
supports the annual recognition of American veterans disabled for life; and
encourages the American people to honor American veterans disabled for life each year with appropriate programs and activities.
Establishment of positions of Directors of Veterans Integrated Service Networks in Office of Under Secretary for Health of Department of Veterans Affairs and modification of qualifications for Medical Directors
Section 7306(a)(4) of title 38, United States Code, is amended—
by inserting and Directors of Veterans Integrated Service Networks
after Such Medical Directors
; and
by striking , who shall be either a qualified doctor of medicine or a qualified doctor of dental surgery or dental medicine
.
Continuing education requirement for employees of Department of Veterans Affairs authorized to prescribe medication
In general
Subchapter I of chapter 74 of title 38, United States Code, is amended by adding at the end the following new section:
Continuing education requirement for employees authorized to prescribe medication
Requirement
Except as provided in paragraph (2), the Secretary shall require each covered employee of the Department to complete not less than one accredited course of continuing education on pain management once every 2 years. Such course shall include information on safe prescribing practices and disposal of controlled substances, principles of pain management, identification of potential substance use disorders and addiction treatment.
Paragraph (1) shall not apply to a covered employee if the covered employee is licensed or certified by a State licensure or specialty board that requires the completion of continuing education relative to pain management or substance use disorder management.
Definitions
In this section:
The term covered employee
means any employee of the Department authorized to prescribe any controlled substance, including an employee hired under section 7405 of this title.
The term controlled substance
has the meaning given such term in section 102 of the Controlled Substances Act (21 U.S.C. 802).
Applicability
The requirement under subsection (a) shall apply with respect to a covered employee for any 24-month period during which the covered employee is employed by the Department for at least 180 days.
.
Clerical amendment
The table of sections at the beginning of such chapter is amended by adding at the end of the items relating to subchapter I of such chapter the following new item:
7413. Continuing education requirement for employees authorized to prescribe medication.
.
Applicability
Section 7413 of title 38, United States Code, as added by subsection (a) shall apply with respect to a 12-month period that begins on or after the date of the enactment of this Act.
Review of whistleblower complaints
In general
Chapter 7 of title 38, United States Code, is amended by inserting after section 711 the following new section:
Review of whistleblower complaints
In general
During each calendar quarter, the Secretary shall review each covered whistleblower complaint that is filed during the previous calendar quarter.
Delegation
The Secretary may only delegate the authority of the Secretary under subsection (a) to review a covered whistleblower complaint, without further delegation, to—
the Deputy Secretary of Veterans Affairs;
the Under Secretary for Health;
the Under Secretary for Benefits;
the Under Secretary for Memorial Affairs;
an Assistant Secretary of Veterans Affairs;
a Deputy Assistant Secretary of Veterans Affairs; or
a director of the Veterans Integrated Service Network.
Covered whistleblower complaint defined
In this section, the term covered whistleblower complaint means any complaint filed with the Office of the Special Counsel under subchapter II of chapter 12 of title 5 with respect to a prohibited personnel practice committed by an officer or employee of the Department of Veterans Affairs and described in section 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) of such title.
.
Clerical amendment
The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 711 the following new item:
712. Review of whistleblower complaints.
.
Identification of matters relating to part-time employment of members of the Armed Forces who are physicians
The Secretary of Veterans Affairs shall identify—
the number of members of the Armed Forces serving on active duty who are physicians employed at a Department of Veterans Affairs medical facility on a part-time basis;
the process by which the Department hires such physicians on a part-time basis;
the process by which the Department hires civilian physicians on a part-time basis; and
the steps the Department is taking to recruit members of the Armed Forces serving on active duty who are physicians for employment at Department medical facilities on a part-time basis.
Recruitment of physicians in Department of Veterans Affairs
In general
Section 7402(b)(1) of title 38, United States Code, is amended—
by inserting or to be offered a contingent appointment to such position,
after position,
; and
by striking subparagraph (B) and inserting the following new subparagraph (B):
have completed a residency program satisfactory to the Secretary; or
with respect to an offer for a contingent appointment upon the completion of a post-graduate training program, complete such a residency program by not later than 2 years after the date of such offer; and
.
Oversight of graduate medical education programs
The Secretary shall—
ensure that a recruiter or other similar official of each Veterans Integrated Service Network visits, not less than annually, each allopathic and osteopathic teaching institution with a graduate medical education program within the Network to recruit individuals to be appointed to positions in the Veterans Health Administration; and
submit to Congress an annual report on the implementation of paragraph (1), including the success of such recruiting efforts.
Authority to disclose certain medical records of veterans who receive non-Department of Veterans Affairs health care
Section 7332(b)(2) of title 38, United States Code, is amended by adding at the end the following new subparagraph:
To a non-Department entity (including private entities and other departments or agencies of the Federal Government) that provides hospital care or medical treatment to veterans.
.
Survey of veteran experiences with Department of Veterans Affairs medical care
In general
The Secretary of Veterans Affairs shall seek to enter into a contract with a non-government entity with significant experience conducting scientifically verifiable surveys and research to conduct an annual survey of a statistically significant sample of veterans who reside in the geographic area served by each of the medical facilities of the Department of Veterans Affairs to determine the nature of the experiences of such veterans in obtaining hospital care and medical services furnished by the Secretary at each such medical facility. Each such survey shall be conducted using scientific and verifiable methods. Such contract shall provide that the non-government entity shall conduct such annual surveys during the 5-year period beginning on the date on which the Secretary enters into the contract with the non-government entity.
Contents
The contract entered into under subsection (a) shall provide that each survey conducted pursuant to the contract shall be specific to a medical facility of the Department and shall include questions relating to the experiences of veterans in requesting and receiving appointments for hospital care and medical services furnished by the Secretary at that medical facility, including questions relating to each of the following:
The veteran’s ability to obtain hospital care and medical services at the facility in a timely manner.
The period of time between the date on which the veteran requests an appointment at the facility and the date on which the appointment is scheduled.
The frequency with which scheduled appointments are cancelled by the facility.
The quality of hospital care or medical services the veteran has received at the facility.
Consultation
The contract entered into under subsection (a) shall provide that in designing and conducting the surveys for each medical facility of the Department pursuant to such contract, the non-government entity shall consult with veterans service organizations.
Certification
The contract entered into under subsection (a) shall provide that—
before conducting a survey pursuant to the contract, the non-government entity shall submit the proposed survey to the Comptroller General who shall assess whether the survey is scientifically valid and whether the proposed sample size of veterans to be surveyed is statistically significant; and
the non-government entity may not conduct such a survey until the Comptroller General provides such a certification for the survey.
Submittal of results and public availability of information
Not later than 30 days after the completion of the surveys conducted pursuant to a contract entered into under subsection (a) for a year, the Secretary shall make the results of the surveys publicly available on the Internet website of the Department.
Paperwork reduction
Subchapter I of chapter 35 of title 44, United States Code shall not apply to this section.
Deadline for implementation
The Secretary shall enter into a contract under subsection (a) for each medical facility of the Department by not later than 180 days after the date of the enactment of this Act.
Annual report on performance of regional offices of the Department of Veterans Affairs
Section 7734 of title 38, United States Code, is amended—
in the first sentence, by inserting before the period the following: and on the performance of any regional office that fails to meet its administrative goals
;
in paragraph (2), by striking and
;
by redesignating paragraph (3) as paragraph (4); and
by inserting after paragraph (2) the following new paragraph (3):
in the case of any regional office that, for the year covered by the report, did not meet the administrative goal of no claim pending for more than 125 days and an accuracy rating of 98 percent—
a signed statement prepared by the individual serving as director of the regional office as of the date of the submittal of the report containing—
an explanation for why the regional office did not meet the goal;
a description of the additional resources needed to enable the regional office to reach the goal; and
a description of any additional actions planned for the subsequent year that are proposed to enable the regional office to meet the goal; and
a statement prepared by the Under Secretary for Benefits explaining how the failure of the regional office to meet the goal affected the performance evaluation of the director of the regional office; and
.
Extension of authority of the Secretary of Veterans Affairs to provide for the conduct of medical disability examinations by contract physicians
Section 704(c) of the Veterans Benefits Act of 2003 (Public Law 108–183; 38 U.S.C. 5101 note) is amended by striking December 31, 2016
and inserting December 31, 2017
.
Provision of status under law by honoring certain members of the reserve components as veterans
Veteran status
In general
Chapter 1 of title 38, United States Code, is amended by inserting after section 107 the following new section:
Honoring as veterans certain persons who performed service in the reserve components
Any person who is entitled under chapter 1223 of title 10 to retired pay for nonregular service or, but for age, would be entitled under such chapter to retired pay for nonregular service shall be honored as a veteran but shall not be entitled to any benefit by reason of this section.
.
Clerical amendment
The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 107 the following new item:
107A. Honoring as veterans certain persons who performed service in the reserve components.
.
Clarification regarding benefits
No person may receive any benefit under the laws administered by the Secretary of Veterans Affairs solely by reason of section 107A of title 38, United States Code, as added by subsection (a).
Provision of rehabilitative equipment and human-powered vehicles to certain disabled veterans
In general
Section 1714(a) of title 38, United States Code, is amended—
by striking Any veteran
and inserting (1) Any veteran
; and
by adding at the end the following new paragraph:
The Secretary may furnish rehabilitative equipment to any veteran who is entitled to a prosthetic appliance.
In carrying out subparagraph (A), the Secretary may modify non-rehabilitative equipment owned by a veteran only if the veteran elects for such modification.
The Secretary shall annually submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report on rehabilitative equipment furnished to veterans under subparagraph (A). Each such report shall include, with respect to the year covered by the report—
the number of veterans eligible to receive such rehabilitative equipment;
the number of veterans who received such rehabilitative equipment;
the number of veterans who elected to receive modified equipment pursuant to subparagraph (B); and
any recommendations of the Secretary to improve furnishing veterans with rehabilitative equipment.
In this paragraph, the term rehabilitative equipment
means—
rehabilitative equipment, including recreational sports equipment that provide an adaption or accommodation for the veteran, regardless of whether such equipment is intentionally designed to be adaptive equipment; and
includes hand cycles, recumbent bicycles, medically adapted upright bicycles, and upright bicycles.
.
No additional funds
No additional funds are authorized to be appropriated to carry out the requirements of this section and the amendments made by this section. Such requirements shall be carried out using amounts otherwise authorized.
Appointment of licensed hearing aid specialists in Veterans Health Administration
Licensed hearing aid specialists
Appointment
Section 7401(3) of title 38, United States Code, is amended by inserting licensed hearing aid specialists,
after Audiologists,
.
Qualifications
Section 7402(b)(14) of such title is amended by inserting , hearing aid specialist
after dental technologist
.
Requirements
With respect to appointing hearing aid specialists under sections 7401 and 7402 of title 38, United States Code, as amended by subsection (a), and providing services furnished by such specialists, the Secretary shall ensure that—
a hearing aid specialist may only perform hearing services consistent with the hearing aid specialist’s State license related to the practice of fitting and dispensing hearing aids without excluding other qualified professionals, including audiologists, from rendering services in overlapping practice areas;
services provided to veterans by hearing aid specialists shall be provided as part of the non-medical treatment plan developed by an audiologist; and
the medical facilities of the Department of Veterans Affairs provide to veterans access to the full range of professional services provided by an audiologist.
Consultation
In determining the qualifications required for hearing aid specialists and in carrying out subsection (b), the Secretary shall consult with veterans service organizations, audiologists, otolaryngologists, hearing aid specialists, and other stakeholder and industry groups as the Secretary determines appropriate.
Annual report
In general
Not later than 1 year after the date of the enactment of this Act, and annually thereafter during the 5-year period beginning on the date of the enactment of this Act, the Secretary of Veterans Affairs shall submit to Congress a report on the following:
Timely access of veterans to hearing health services through the Department of Veterans Affairs.
Contracting policies of the Department with respect to providing hearing health services to veterans in facilities that are not facilities of the Department.
Timely access to services
Each report shall, with respect to the matter specified in paragraph (1)(A) for the 1-year period preceding the submittal of such report, include the following:
The staffing levels of audiologists, hearing aid specialists, and health technicians in audiology in the Veterans Health Administration.
A description of the metrics used by the Secretary in measuring performance with respect to appointments and care relating to hearing health.
The average time that a veteran waits to receive an appointment, beginning on the date on which the veteran makes the request, for the following:
A disability rating evaluation for a hearing-related disability.
A hearing aid evaluation.
Dispensing of hearing aids.
Any follow-up hearing health appointment.
The percentage of veterans whose total wait time for appointments described in subparagraph (C), including an initial and follow-up appointment, if applicable, is more than 30 days.
Contracting policies
Each report shall, with respect to the matter specified in paragraph (1)(B) for the 1-year period preceding the submittal of such report, include the following:
The number of veterans that the Secretary refers to non-Department audiologists for hearing health care appointments.
The number of veterans that the Secretary refers to non-Department hearing aid specialists for follow-up appointments for a hearing aid evaluation, the dispensing of hearing aids, or any other purpose relating to hearing health.
Passed the House of Representatives September 14, 2016.
Karen L. Haas,
Clerk
